Part-timer Duncan Hart takes on retail giant Coles

This is a David and Goliath legal battle over an enterprise agreement, but it is more than that too. This is about power and money, how it flows between big business, big unions and Labor, to have an adverse impact on ordinary people, as workers and consumers. It exposes the hypocrisy of unions that publicly campaign to protect penalty rates while they privately act to cut them and it raises questions about whether big companies use unions as weapons in the war to preserve market domination.

C2015/4999: remember this Fair Work Commission matter number. Judgment is yet to be delivered but, from the evidence to date, supermarket giant Coles could be the new Cleanevent.

Cleanevent, about a decade ago, did dodgy enterprise bargaining agreements with the Australian Workers Union. Behind the scenes, workers were shunted into the union and money changed hands. The EBAs robbed employees of an estimated $400 million in wages.

The EBA under challenge belongs to Coles. It was certified in July last year by the Fair Work Commission and is still in operation.

Duncan Hart, who works part time at a Coles supermarket in Brisbane, is trying to have the EBA struck down. Documents filed say Hart earns $325.09 a week under the EBA, $63.89 a week less than he would if he was paid under the relevant award.

Not long after the EBA was certified, Hart took action, saying it left many of the 77,000 workers it covers worse off. EBAs are all tested by the commission to make sure workers are better off overall as compared to the award. It is illegal to pay workers less than the award. For the test, the commission relies on assurances contained in statutory declarations from employers and unions. If Hart wins his case, and it looks strong, the decision will raise questions about whether the commission was deliberately misled.

The latest hearing took place on February 2. The EBA provides a higher base rate than the award but cuts night and weekend penalty rates. Hart’s team says employee “EE” — a “permanent part-time 60-year-old Benalla cleaner” — earns $366.98 a week under the EBA but under the award would earn $481.52 a week. They say the losses are $5979 a year, a 31.2 per cent drop, not including “any further detriment incurred due to overtime hours”.

Coles provided rosters from a Northcote store. Hart’s team analysed these, with detailed calculations. They say if the financial losses to workers here were extrapolated, there is more than $70m in lost wages a year.

Coles is mounting a strident defence, as is the Shop, Distributive and Allied Employees Association, which represented staff in negotiations. The SDA is Australia’s largest private sector union. It claims 200,000 members and has an iron grip over Labor.

But under cross-examination in the hearing, SDA official Matthew Galbraith accepted that the union knew some workers would be worse off. Here, from the transcript, are the questions and his responses.

Was the SDA aware at the time the agreement went out to vote that some employees would earn less than the award minimum?

MG: The SDA’s aware that the employees who work predominantly penalty rate times without the compensation of higher base rates of those hours during the week could potentially be worse off.

The SDA was aware of that at the time that the agreement was put out to vote, that’s correct?

MG: I imagine so.

The SDA was aware of that at the time that it filed its F18 statutory declaration in support of the agreement?

MG: Yes.

But you accept the employees weren’t told?

MG:The employees weren’t told.

The tribunal (Fair Work Commission) wasn’t told, was it?

MG:I don’t believe so.

Hart’s lawyer drew the commission’s attention to other matters. Recently, 7-Eleven tried to register an EBA. The SDA mounted a legal objection yet the 7-Eleven EBA allegedly pays workers more than the Coles one. Could it be that the SDA is assisting Coles by harassing others? Coles denies any knowledge or involvement in the matter. Coles and the SDA are close but the SDA and 7-Eleven are not. I asked Coles if it was true their workers attend induction sessions, conducted by the manager and the union rep. It responded: “In some industries it is common practice to invite the union to attend inductions of new employees.” In these sessions, workers are urged to join the union. Fees are collected from their wages by Coles and passed on. Coles confirmed it charges the union an “administration fee” and pays the union to conduct “health and safety training” in its business.

I asked Coles: does it deny misleading the commission upon certification of the EBA? No denial was made; instead it said, “Your assertion is not accurate,” and defended the merits of the agreement, which it said benefited workers overall, and it provided transcripts of where the SDA had said so to the ABC.

The next hearing is on February 29. If the Coles EBA is struck out or amended, an investigation may occur. The commission may want to put on the record why it was approved in the first place.